Probate Frequently Asked Questions
- What is Probate?
Probate is the legal process in which a Court appoints a person to legally stand in the shoes of the deceased in order to transfer assets and pay outstanding debts. This person is taxed with winding up the affairs of the deceased person.
- What is Letters Testamentary or Letters of Administration?
Letters Testamentary or Letters of Administration is simply a term for a certified document from the Court that shows others that the person named in the document has the legal authority to act on behalf of the Estate.
- My Father/Mother was married when he/she died. Doesn’t his/her Wife/Husband just get everything anyway?
Not necessarily. Many of my Clients come to me for help for this very reason. Years have passed and the surviving spouse is wanting to sell the home, only to find out they do not have clear title. There are situations when a person dies having children that are not the children of the current spouse. Even though the home may have been purchased during marriage, the children of the Decedent own an interest in the home as well. This situation is one of many reasons it is important to have a Will in place before death.
- My Father/Mother didn’t have anything except a bank account when he/she died. Do I have to Probate?
Maybe not. There are several options in Texas when it comes to probate. If the bank account is small, some banks have their own Affidavits of Heirship that can be completed by the heirs in order to claim the funds. If the account cannot be handled through the bank, a Small Estate Affidavit may be sufficient. In some cases, a full probate proceeding may be necessary.
- We already claimed the account. Do we include it in the Probate?
No. When a person dies, their assets are classified into two types – probate assets and non-probate assets. Any asset that transfers by way of a pay on death (POD) designation, a beneficiary designation, or a joint with right of survivorship designation is a non-probate asset. Those items generally pass directly to the person named and is not considered as part of the Estate to distribute between the heirs or beneficiaries. Typical non-probate assets are life insurance policies, Individual Retirement Accounts, bank accounts or other financial accounts.
- What is an Executor?
The Executor is an individual named under a Will as the person responsible for winding up the affairs of the Decedent. This individual will be tasked with the administration of the Estate and probating the Will.
- What is an Administrator?
An Administrator is typically the person appointed by the Court to wind up the affairs of a Decedent who dies without a Will. There are some instances where a Will may be probated, but an Executor is not named. In those instances, an Administrator will be appointed in an Estate with a Will.
- What is the difference between independent and Dependent Administration?
In the situation of Wills, most are drafted to include a provision that allows the Executor to act independently without Court supervision. This means that the administration of the Estate will have minimum Court supervision, only requiring certain steps in the probate process to be filed with the Court, such as an Inventory, Appraisement and List of Claims, a notice to creditors, etc. An Independent Executor has the ability to collect assets, sell assets, pay debts, and make distributions to beneficiaries without the Court’s permission. This is less costly than a Dependent Administration. A Dependent Executor or Administrator must make an application to the Court and obtain permission from the Judge to handle the Estate, such as selling a home or distributing cash to the heirs. Every step of the process with very limited exceptions requires an application, an order, and sometimes a hearing BEFORE the Administrator can take action.
- Why would anyone want a Dependent Administration?
Many times the beneficiaries or heirs of an Estate do not get along. This can happen in any family, but is typically found in blended families. Sometimes heirs do not trust each other and the only way to protect not only all the heirs, but also the Administrator from frivolous claims of breaching their fiduciary duty is to allow for a dependent administration. If you are in a situation where you believe a dependent administration may be beneficial, contact us to schedule a consultation to talk through the issues.
- Who is responsible for Probating the Estate?
This depends on the circumstances, but generally when a person dies having a Will in place, then the individual named as the Executor should be responsible for probating the Will.
- How long do I have to Probate the Will?
Generally, the Executor named in the Will has four (4) years from the date of death to apply for probate with he Court. If the Executor has not done so within four (4) years, that person may be found in default.
- How much does Probate cost?
Attorneys charge either by the hour, or a flat rate fee for handling certain cases. Regardless of the hourly rate, you should expect to pay no less than $1,000 for a Small Estate and can be into the thousands for complicated, contested Estates.
- How long does Probate take?
The answer depends on the circumstances of the Estate. Each Estate is different. Estates can take anywhere between a few short months to several years to settle.
- I am named as Executor in a Will but I live in another State. Can I still serve as Executor?
Absolutely. In order to serve as an Executor, you must appoint a resident agent in order to receive process sin Texas on your behalf. An experienced Probate Attorney can prepare the necessary documents and apply to the Court for probating the Will and appointing you Executor.
- Will I have to come to Texas?
Although it is generally easier for you to come to Texas to attend the hearing to appoint you Executor, it is not necessary. There are other options available if traveling to Texas is a hardship. Speak to an experienced Probate Attorney about your concerns so they can handle the probate process appropriately. It is possible to handle all aspects of the probate from out of State.
- My relative died without a Will. I was told the State will get everything. Is this true?
Not at all. Most people misunderstand what people mean when they say the State will decide who gets the property. In Texas, if a person dies without a Will, the Texas Estates Code contains provisions for distribution of the Estate. This may not be what the Decedent would have wanted. Having a Will allows the person to determine where the assets should go. Without a Will in Texas, the division of the assets are controlled by the descent and distribution laws of the State of Texas. If you are unsure of what happens to the Estate, schedule a consultation with an experienced probate attorney now to understand your rights.
- I represented myself in my divorce. Can’t I handle the Probate myself?
In Texas, there are very limited situations in which a person can represent themselves in probate. An Estate can only be represented by a Personal Representative (Executor or Administrator). A Personal Representative is tasked with the duty and responsibility to act for the benefit of the beneficiaries or heirs of the Estate. This creates a fiduciary duty to the beneficiaries or heirs. As such, a Personal Representative cannot represent themselves since they have a duty to third parties. Only a licensed attorney can represent a Personal Representative before the Court. If you need to hire an Experienced Probate Attorney in Azle Texas or surrounding areas, contact us today to schedule a consultation to see how we can help you.
- What is a secured creditor and do I have to pay them?
A secured creditor is any creditor that holds a debt of the Decedent secured by collateral, such as a house or a car. These creditors must be notified of the death of the decedent during the probate process. The question regarding payment is more difficult to answer and is very fact specific. The Executor and the beneficiaries are not individually liable for payment of these claims in most case. There are always exceptions. During the administration of an estate, there is a claims process for the creditors to notify the Executor or Administrator of their intent to collect the debt against the Estate. This process can include not only secured creditors, but unsecured creditors. The process should be discussed with an experienced probate attorney to ensure claims are handled correctly and are either accepted or disallowed according to law. Failure to do so could result in the Personal Representative being personally liable. If you are the Executor or Administrator of an Estate with heavy debt, contact us today to schedule a time to discuss the claims process and how to protect yourself and the beneficiaries or heirs.
- What is an unsecured creditor?
Similar to the above, an unsecured creditor is a creditor that holds a debt of the Decedent, but the debt is unsecured. The most common unsecured debts are credit card debts. The Texas Estates Code provides specific steps for notifying creditors and for creditors to present claims against the Estate for payment. As stated above, the process is very specific and should be discussed with an experienced probate attorney to ensure claims are handled correctly and are either accepted or disallowed according to law. Failure to do so could result in the Personal Representative being personally liable. Schedule your appointment today to discuss the claims process and how to protect yourself and the beneficiaries or heirs.
- My Dad wrote his own Will and signed it. It is not notarized or witnessed. Is it still good?
Yes. A Will that is wholly in the handwriting of and signed by the Testator is called a holographic Will. Holographic Wills are legal in Texas and can be admitted to probate. There are certain requirements for probating and proving a holographic Will in Court. If you have a holographic Will and need to have it probated, contact me today to discuss the necessary process and requirements. We can assist you with probating a holographic Will.
- My Dad didn’t change his Will after he divorced my mom. Is my mom still his Executor?
Unless the Will provides otherwise, Texas law states that all provisions in the will, including all fiduciary appointments, shall be read as though the former spouse and any relative of the former spouse who is not a relative of the Testator predeceased the Testator. This means that any provision in the Will naming your mother as a beneficiary or as the Executor will be void as if she died before your father.
- The named Executor died or does not want to serve. What do we do now?
When the person named as the Executor in a Will dies before the Testator, then the next named Executor will be the person to serve. Nothing special needs to be signed, but you should have a copy of the death certificate or obituary to show your attorney proof of his or her death. The attorney should reference the facts regarding the death of the first named Executor in the application to probate the Will. In the event the person named just does not want to serve or is otherwise unable to serve, then the attorney can prepare a declination to serve in favor of the next named Executor. If there are no other named Executors to serve, then there are other steps that can be taken to appoint an Administrator to administer the Will.
- What is a Small Estate Affidavit?
A Small Estate Affidavit is a method that can be used in Texas when a person dies without a Will, all of the assets excluding the homestead and exempt property total less than $75,000, and the assets exceed the liabilities of the Estate. Once the Affidavit is signed and filed with the Court, the Judge can approve it after the necessary posting time has passed. A certified copy of the Order can then be presented to persons holding the assets, such as a bank.
- Do I have to hire an Attorney prepare it?
The Small Estate Affidavit can be prepared with or without an attorney and filed with the Court, but it must be signed by all heirs of the Estate and two disinterested witnesses. A disinterested witness is a person who will not inherit or benefit from the Estate. Sometimes it is better to have an attorney handle the preparation and filing of the documents since they are familiar with the process and dealing with the Court.
- What information do I need for a Small Estate Affidavit?
You should have an idea of the assets and debts of the Decedent, the name and address of each distributee (heir), and the relevant facts and marital history to prove the distributees’ rights to inherit a share of the Estate. In addition, you should identify two disinterested individuals who can sign the Affidavit as witnesses. A disinterested person is one who has no interest in the Estate and will not benefit in any manner.
- How long does the process take for a Small Estate Affidavit?
It really depends on the Court and when notice was posted by the Clerk after the filing of the Small Estate Affidavit, but the entire process generally takes about thirty (30) days.
- Will I have to appear in Court for a Small Estate Affidavit?
Once the Affidavit is filed with the Court and the time has passed after posting by the Clerk, the Judge can review the Affidavit and sign the Order or deny the Order.
- What do you charge for a Small Estate Affidavit?
I charge a flat fee of $800.00 for a Small Estate Affidavit, which fee includes filing fee and court costs.
- What is a Muniment of Title?
A Muniment of Title is a Court proceeding in which a Decedent’s Estate can be probated without administration. This is one of the shortest and fastest probate proceedings in Texas. If the Decedent dies with a Will having no debts other than those secured by a lien on real estate, then the Court can probate the Will without administration.
- Will I be appointed Executor under a Muniment of Title?
No. Since one of the requirements for a Muniment of Title is no necessity for administration, then there is no need for the appointment of an Executor.
- Will I still have to appear at a hearing?
Yes. The person that applies for probate as a Muniment of Title is called the Applicant. The Applicant will appear at a hearing in order to give oral testimony to the Court as to why the Will should be probated and that there is no need for administration of the Estate.
- If the Will is probated as a Muniment of Title, what do I do to get the property in my name?
Because there is no Executor appointed, you will not have a Deed transferring title to real property to you. If the real property is located in the County where the probate occurred, then there is nothing more you need to do. If the real property is located in a different county, then you can record a certified copy of the Order Probating Will in the Deed records where the property is situated.
- What if I want to sell the property and I don’t have a Deed?
Title Companies and Real Estate Agents should be familiar with the probate process. During the Title Search, the probate records should appear. If there are any questions that arise, your Title Company will request additional information. You can provide them with a copy of the Order Probating Will as a Muniment of Title, or direct them to your attorney. Selling property inherited through a Muniment of Title proceeding is common and generally not an issue.
- Do I have to hire an attorney to handle the Muniment of Title?
Yes. As addressed previously, you will need to hire an attorney to represent you unless you are the sole beneficiary under the Will and the ONLY one that will inherit the property. There are very limited circumstances where a person can represent themselves in probate court. It is the best practice to hire an experienced probate attorney to assist in the process.
- How much does the Muniment of Title cost?
I charge a flat fee of $1,500 to handle Muniments of Title. This fee includes all filing fees and court costs, as well as the court appearance.
- My sister made my Mom sign a new will just before she died. Can I do anything?
I hear this quite often in my practice. The answer is it depends. Every case must be evaluated to determine the facts surrounding the signing of the new Will, whether an attorney was involved, whether your mother had testamentary capacity, how different the old will and new will are, if there were any medical conditions or diagnosis that would preclude your mother from signing a new Will, etc. Wills can be contested but the facts and the merits of the case should be evaluated closely and carefully. If you believe there is something wrong, then act quickly, otherwise it may be too late to recover property or protect the assets.
- How do I contest a Will?
If you believe you have grounds to contest a Will, then it is imperative to hire an attorney and act quickly. The attorney will file a contest with the Court where the Will has been submitted.
- What are the reasons for contesting a Will?
Wills can be contested for a variety of reasons – some are easier to prove than others. Common reasons to contest a Will in Texas are: improper execution; lack of capacity; fraud or forgery; undue influence; and having multiple signed Wills of the same date or close to the same date. If you believe any of these apply to your circumstances, contact us today to have your case evaluated. Will contests should be handled by an experienced probate attorney to protect your rights.
- I can’t contest the Will because there is a no contest clause. I would rather have something than nothing at all!
I see this a lot in Will contests. The circumstances are usually as follows: You are named a beneficiary to receive $100.00 (or other nominal value) while your sibling, who lived with Mom, gets the house, bank accounts, and virtually everything else. The Will was signed a week before Mom died, and Mom had Alzheimer’s disease. A no-contest clause does not preclude you from filing a Will contest. The requirement under a no-contest clause is that the contest must be brought in good faith. In the scenario above, a contest, even if lost, would be based on good faith and reasonable belief that something wasn’t right. The no-contest clause would be unenforceable. Change the facts to state that Mom signed a new Will about 10 years ago, you were living in Alaska and cut off all ties to your Mom, and sister lived a few towns away and talked to Mom regularly, then the Court may find that your contest was frivolous and brought in bad faith. In that situation, you could lose anything you were to receive under the Will. If you believe something isn’t right, contact us today to schedule a consultation. We will evaluate your case quickly and advise you as to whether your case would have merit.
- Do you charge for consultations?
Yes. I charge a small $50.00 flat fee, whether you need 30 minutes or an hour. My consultation fee must be paid in cash and you should make sure you have the exact amount as I do not have change.
- I scheduled a consultation with you for probate. What should I bring?
As a potential client, you should bring with you any and all information you have concerning the Decedent, including assets and debts, beneficiary information, and the original Will, if it can be located. It is always better to have more information than necessary. However, if you do not have all of the information or do not know it, please do not cancel the appointment. You can bring what you have and we can work through any other issues.
- I work all day and cannot afford to take off work. Do you offer evening or weekend appointments?
Yes! I try to schedule appointments at times that are convenient for you, so please do not hesitate to ask for other available times and dates outside of normal business hours. While I cannot always accommodate other schedules, I do try.
- Do I have to pay for the probate myself?
Yes. You will need to be prepared to pay the necessary fees up front for probating the Estate. However, any attorney fees you pay are reimbursable from the Estate. Once you receive Letters Testamentary or Letters of Administration and start getting cash in the Estate, you can reimburse yourself for administration expenses. You should do this under the direction of an attorney and not just on your own.
- I cannot afford the full amount upfront. What do I do?
I offer two ways to pay for legal fees. One way is through third party financing which is a personal loan based on credit. If you request this option, we send you the link to our partner and they process your information and qualify you. Keep in mind it is a personal loan that is credit based, reports to the credit reporting agencies, and is a loan between you and the other company. We have no control over the approval process, the amounts approved, nor the monthly payments. The other option is in house financing. This option requires half the fee paid up front, and the other half to be paid within 60 to 90 days of signing a fee agreement.
- Do you take any pro bono cases?
I do take pro bono cases during the year, but they are limited to special circumstances and I only accept one or two a year. While I do understand the struggles of financial hardship, there are other low cost resources available to assist the public.
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